Forum Shopping

Sometimes the answer to the question “where should the case be decided” may be the most important element in the case. Choosing where to have the case decided is sometimes known as forum shopping.

A forum

Inter-state or International connections

Choosing a forum

Competing for a different forum

European Union Countries and the Convention on Jurisdiction and Recognition and Enforcement in Family Matters (Brussels II and Brussels IIA)

The English approach to competing divorce proceedings in non-EU countries

Key Stages

A forum

A forum is a place with a particular system of laws. In many countries there is only one system of law throughout the country, whereas in others, such as the USA and Switzerland, there is a federal system, in which each state has its own set of laws, and separate courts, and each state is a separate forum. Forum shopping is the process of choosing between a number of possible forums, or jurisdictions, which could consider a legal application, and make a legally-binding decision in the case.

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Inter-state or International connections

In many cases there will be no real decision to be made about forum: if both parties were born in, have always lived and worked in, and own all their property in Brazil, neither is likely to think of having their divorce heard in England and Wales. There may be only one forum which will be prepared to consider the case, and, if so, no choice to be made. The Brazilian couple, for example, are unlikely to have sufficient connection with England to persuade the English court to accept jurisdiction. However, increasingly people have a range of significant connections with a number of different countries, or significant connections with a number of different states within a particular country. Where there are such international or inter-state connections, choosing the best forum for a particular case may be an important decision.

Within the countries of the European Union (with the exception of Denmark) the question of forum in a large number of family matters is governed by a treaty known as Brussels II (the Convention on Jurisdiction and Recognition and Enforcement in Matrimonial Matters and in Matters of Parental Responsibility for the Children of both Spouses); applications to enforce maintenance agreements are governed by a treaty known as Brussels I (Convention on Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters). Elsewhere in the world the precise rules about whether a state or country will consider a particular legal application are different in the various jurisdictions, but in the main the courts of the state or country require at least one of the parties to have some connection with that state or country. The connections which are likely to lead to a place accepting jurisdiction are things like nationality, residence, domicile, and significant business interests. When considering a range of possible forum it should be borne in mind that a court that is able to accept jurisdiction may choose not to do so because it considers that another forum would be a more appropriate place to decide the case.

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Choosing a forum

Having identified the various forums that might accept jurisdiction, the next step is to consider what results are likely in the different jurisdictions, and how easy, or difficult it will be to enforce the decision that a particular court may make. It may also be important to look at the practical likelihood of the court refusing to hear the case — even if a particular forum is identified as having a legal system which suits a particular case, it may not be worth the cost of issuing proceedings there if there is a very good chance that another jurisdiction will be identified as very obviously the most appropriate forum. The other important factor is the overall convenience of being involved in legal proceedings in a particular place. The jurisdiction likely to produce a favourable result for one party will not necessarily be the best jurisdiction for that party. Bringing legal proceedings there may unduly disrupt the life of the party, or the party’s children, for example by involving them in too much travelling. It may be that the costs of bringing legal proceedings in that place are just too great. It may be that the attractions of the particular legal system do not outweigh language problems that the party is likely to encounter.

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Competing for different forum

If a forum is chosen by one party as the most advantageous to their claim, it is likely to be correspondingly disadvantageous to the other party, who as a result may challenge the choice of forum. Within the European Union (excluding Denmark) if there is more than one possible forum, then the country in which proceedings are first brought has exclusive jurisdiction, and no challenge is possible. Elsewhere in the world, if an application has been made in one jurisdiction, it may be possible to go ahead and issue proceedings in a second jurisdiction, arguing in the second jurisdiction that the other is more appropriate and that the proceedings in the first jurisdiction should be “stayed” or stopped. In very many cases, however, the decision as to where the case should be heard will depend on which proceedings were brought first, even if one of the jurisdictions involved is not within the European Union and therefore not governed by Brussels II.

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European Union Countries and the Regulation on Jurisdiction and Recognition and Enforcement in of Judgments in Matrimonial Matters and in Matters of Parental Responsibility (The new Brussels II)

The latest version of this European law, which applies from 1 March 2005, covers:

(a) divorce, separation, and annulment of marriage;

(b) parental responsibility including rights of custody and rights of access (no longer restricted to disputes between married parents);

(c) enforcement of contact orders;

(d) special rules applied to cases concerning abduction of children (although these can still be dealt with under the provisions of the 1980 Hague Convention on International Child Abduction)

The Regulation does not deal with paternity, or adoption.

Under the new Brussels II the courts of a state are able to accept jurisdiction where one of the parties is habitually resident in, or a national of, or, in certain circumstances, domiciled in the state (Arts.7 and 8). However, neither party can commence proceedings in a country until after they have lived in that country for at least six months. The courts of the country in which the parties have been living will not be able to decline jurisdiction on the basis that that country is not the most appropriate forum.

With certain exceptions the courts of the state of the child’s habitual residence have jurisdiction to determine disputes relating to parental responsibility. One exception concerns relocation: where the child moves, lawfully, from a country whose courts have issued a judgment on parental responsibility, particularly contact, to another member state, then for 3 months after relocation the original state will retain jurisdiction. Another exception concerns issues of parental responsibility connected with proceedings for divorce, separation or annulment, yet another the situation in which parents agree to bring the case before the courts of another member state, with which the child has a close connection, for example that of nationality. Where a child’s habitual residence cannot be established, the member state in which the child is physically present will assume jurisdiction by default. Where there are proceedings for divorce, separation or annulment, an issue of parental responsibility connected with those proceedings shall be heard by the courts of the member state in which those proceedings are being heard. Where there are no such proceedings, the courts of the member state where the child has a ‘substantial connection’ with the state, particularly if one of the holders of parental responsibility is habitually resident in that state, or if the child is a national of that state, shall have jurisdiction.

The courts of one country may transfer proceedings relating to children to the courts of another signatory country ‘by way of exception’ in ‘the superior interests of the child’ if they consider that the child has a particular connection with the other country, or that the courts of that other country would be better placed to hear the case.

Where proceedings are begun in two European Union states, both of which can accept jurisdiction, the proceedings commenced first in time must be allowed to continue and those started second must be halted.

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The English approach to competing divorce proceedings in non-EU countries

When one party suggests that the English court is not the appropriate forum, and that another, non-EU country, is more appropriate, the court may decide to stay a divorce petition issued in England and Wales if:

• proceedings which affect the marriage are continuing in another jurisdiction; and the balance of fairness (including convenience) as between the parties means that it is appropriate for the proceedings in the other jurisdiction to be disposed of before further steps are taken in the English proceedings.

The respondent will have to satisfy the court that there is some other available non-EU forum, which is clearly a more appropriate forum, that is, a more suitable place to try the case for the interests of all the parties and the ends of justice. The court will consider the possible advantages and disadvantages of the different forums. Important factors are likely to include :

• which forum was involved in the case first and which is most likely to reach a final decision first
• the whereabouts of the family assets (whether they are wholly or mainly in England) where the parties live (whether either or both have their main home in England) whether the English proceedings cover precisely the same ground as the competing foreign proceedings, or whether, for example, some relief is claimed or available in one forum but not in the other)
• whether the foreign proceedings will produce a result which is contrary to English concepts of justice (for example, if a wife would be denied any opportunity to seek financial relief in the foreign proceedings for reasons which seem to the English court to be inappropriate)

The English court has little, if any, influence over the continuation of the proceedings in the other non-EU country, and if the English court refuses to stay the English proceedings in England, there may be two sets of proceedings concerning identical subject matter, between the same parties, in two places at the same time. In some sorts of litigation this could lead to a duplication of the result, but in a divorce context it usually results in a race to see which legal system will produce a final result first.

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Key stages

In many cases it is not necessary to think about forum shopping, because there is no choice, or no real choice, about forum, but in some cases the decision will be an important one. In every case in which forum is an issue, there are two key stages, first identifying the advantages and disadvantages of the available forums from a practical as well as a legal perspective, and secondly acting as quickly as possible to issue proceedings in the jurisdiction which seems most attractive. Making the first application in the case does not necessarily guarantee someone the forum of their choice, but it may be crucial, and will in any event be very helpful.